Presidentialism, Democracy, Interpretation: Notes of a Grateful Author (Part 2), by Peter M. Shane
*This is the sixteenth and final post in a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here.
In Part 1 of my response to the wonderful set of fourteen essays commenting on my book, Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency (DCE), I offered a summary of the arguments advanced in the book and some reactions to those of my discussants who engage the book directly regarding its claims about presidents and democracy. Several discussants (including some also mentioned in Part 1) engage me also on questions of constitutional interpretation or regarding suggestions for reform. I will conclude my response by focusing on their comments.
In the main, I found the elements of my argument well understood and accurately presented by all the commenters. Regarding the role of constitutional theory, however, I think some of the concerns raised by Professor Whittington and, from a more sympathetic stance, Professor Nourse may be based on reading into my argument something more or something different from what I was trying to convey. I am grateful for the chance to clarify.
For his part, Professor Whittington reads me as blaming right-wing constitutional theory for the ways in which Donald Trump exercised power and for attributing to Supreme Court opinions “great causal significance” in the growth of presidential power. My position, however, is not that unitary executive theory caused presidentialism, but that it has helped to legitimate it, especially within the legal establishment. It has given ambitiously presidentialist chief executives like George W. Bush and Trump a legalistic language in which to explain to the public (and to the rest of the government) why their aggressive deployment of power ought to be respected as consistent with our constitutional system. It has also been deployed—perhaps most obviously through the proliferation of presidential signing statements in the Bush 43 years—as a way of extinguishing within the executive branch legal establishment any more balanced way of thinking about presidential power. My claim, as stated in DCE’s opening sentence, is that “wrongheaded ideas about expansive executive authority under the Constitution have helped to create within our national government an organizational psychology of presidential entitlement.” That psychology or organizational culture has consequences, I argue, for how the president and other political officials discharge their often discretion-laden roles.
I would also argue that the prose in the “handful of Supreme Court opinions” to which Whittington refers licenses a culture of executive entitlement, even if the prose does not cause it. Like Bush’s signing statements, these opinions play a similar role, intended or not, in clouding the public’s constitutional memory. As presidentialist opinions inevitably find their way into legal casebooks, for example, with dissents undoubtedly whittled down, ideas of executive power that are based largely on fiction come to be further naturalized among generations of law students. This has impact.
Whittington points out that what I call presidentialism partakes of three doctrinal strands, which I call unitary executive theory, national security unilateralism, and the plenary discretion principle. As he reads me, I treat all three theories as “products of the conservative legal movement and a misguided commitment to and application of originalism.” I thought I had taken care, however, to point out that “national security unilateralism” has roots extending back at least to the Johnson Administration. For what it is worth, however, at least the Johnson and Nixon Administrations had the intellectual honesty to eschew any serious effort to defend their views of presidential war initiation power as “originalist.” I attribute to John Yoo that misguided project, which other legal historians—including conservatives—have rebutted.
Professor Nourse and I are clearly on the same page when it comes to the doctrinal sloppiness of unitary executive theory—not surprising since my position owes much to her work—and to the real-world impact of constitutional interpretation. She is concerned, however, that any constitutional theory offered for a world “after originalism” not be branded in a way that causes alarm to “the average citizen.” Americans, she fears, will hear in words like “living Constitution” the discomfiting thought “in highly unstable times that the world should shift without telling anyone how it should shift.” She urges liberals to “give up on adjectives like ‘living’ and ‘updating’ and ‘adapting’ and ‘pluralistic” as far as the Constitution goes.” Nourse mentions, as an acceptable alternative, that she has “recently taken to using the term ‘Democracy’s Constitution.’”
Because the name DCE explicitly gives to my interpretive approach is “democratic constitutionalism,” it sounds as if our disagreement is mainly “to-MAY-to/to-MAH-to.” And although I understand Nourse’s branding concern, I do not see any honest alternative to acknowledging that “democratic constitutionalism” is a species of “adaptive constitutionalism,” as opposed to “originalism.” Although I could have used words like “pragmatic” or “evolving,” I took “adaptive” from John Marshall and his insistence that ours is “a constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.” This candor on my part might cause alarm among citizens who imagine that any constitutional theory will produce uniquely and objectively correct answers to every question of constitutional construction or even the same answer at every moment in the history of the Republic. But it is better I think to show originalism’s empty claims to objectivity than to paper over the inevitable role of value judgment in constitutional interpretation.
Nourse worries, as do I, that advocacy for a “living Constitution” full stop might sound as hospitable to arguments favoring presidentialism as those opposing it. Indeed, the only coherent—whether or not persuasive—arguments for national security unilateralism are “living Constitution” arguments. But they are not “democratic constitutionalist” arguments. I thus use “adaptive constitutionalism” to refer only to the family of interpretive approaches to which democratic constitutionalism belongs, not to my favored member.
Going beyond the interpretation of Article II, several commenters raised questions about how excessive presidentialism might be resisted through a reinvigoration of the nondelegation doctrine or deployment of what has come to be called the “major questions doctrine” regarding executive branch interpretation of statutes. Professors Carlos Ball, Chris Walker, and Ilya Somin all point out that, to the extent courts prevent Congress from vesting flimsily channeled policy discretion to the executive branch, presidents would have less authority to abuse. They thus pose the possibility that a less forgiving version of the nondelegation doctrine might operate as a helpful check against presidential abuse.
I find myself unsympathetic to reworking the nondelegation doctrine, however, for three main reasons. The first is that broad delegations are themselves the output of a democratic process, and they set in motion a bureaucratic decision-making system that I also regard as democratically legitimate. The second is that, in some circumstances, broad delegations may simply be good policy. The third is that a reinvigorated nondelegation doctrine makes it too easy for jurists to find delegations of authority insufficiently specific when their real objection is political, not legal. An intensified nondelegation doctrine is an invitation to mischief.
I have similar concerns about the potential for the judiciary to deploy the major questions doctrine in highly partisan ways. On the other hand, I am quite taken with Professor Dan Farber’s appealing suggestion that the major questions doctrine should be viewed not as doing the work of the nondelegation doctrine, but as guarding against the potential that presidents might exercise powers not actually sanctioned in law. Seen in that light, the major questions doctrine sounds less rooted in Justice Gorsuch’s concurrence in West Virginia v. EPA and more in the concerns animating Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer.
Even with Farber’s more plausible normative account, however, I worry that the Court’s vagueness in identifying what counts as a major question invites partisan mischief, already evident in the lower courts. When judges review presidential initiative for legality, I prefer Jackson’s approach, which I think is less procrustean and more candid. Like Justice Kagan, I would prefer an understanding of the major questions doctrine as just part of common-sense statutory interpretation—namely, that the more ambitious an executive action seems in terms of public impact, the more careful agencies and courts should be in locating authority for that action in vague statutory provisions.
Professor Somin goes further than Farber and Walker, however, in arguing that any real check on presidential abuse of power needs to be rooted in a narrower construction of Congress’s regulatory power under Article I. He argues that if Congress may legislate on virtually anything, delegation of vast implementation authority to the executive branch is inevitable. Moreover, as Congress’s regulatory ambitions outpace the funding provided to achieve them, the executive will be left with enormous discretion to pick and choose targets. (Professor Rodríguez, in her work with Adam Cox on the history of immigration enforcement, makes this point powerfully.) There is no denying the descriptive accuracy of Somin’s observation. Where we differ is in our assessments of the welfare benefits to the nation of allowing Congress broad legislative discretion. Of course, the greater the federal government’s reach, the harder it is to maintain democratic accountability for all of it. But the narrower that reach—for example, in relation to fighting climate change—the less capable Americans may become as a national polity in addressing crises of a national scope through democratic means.
There is much in Somin’s commentary with which I agree, such as the importance of avoiding usurpation of Congress’s spending power. I do not agree, however, with the equation he (and many others) have suggested between an initiative like Trump’s diversion of military funds to build a border wall and the Biden Administration’s student loan forgiveness program. The legality of the first depended on the border wall fitting the statutory definition of “military installation,” which it did not. By way of contrast, in proposing to partially forgive student loans for borrowers whose ability to pay was adversely affected by the impact of the COVID pandemic at its height, the Secretary is literally doing precisely what the HEROES Act authorizes the Secretary to do. There are arguments to be made that the breadth of emergency powers Congress has delegated to the executive branch is excessive, whether about military spending or student loans. But I still think it important to recognize legal distinctions with regard to how presidents use the powers Congress has extended.
If we are not to go so far as Somin suggests in heading off presidentialism, what is possible? Professor Bijal Shah expands on the observation in DCE that reform efforts are likely to be made more difficult because the individuals currently enjoying significant political power have largely acquired their clout by “playing” the separation of powers “game” within existing rules and thus have no obvious incentive to change the rules that have already made them powerful. Shah says, in effect, things are even worse than this; both elected legislators and unelected judges may actually benefit from enabling presidentialism. For legislators, presidentialism may be good politics, since the President’s “base” will be their political base, as well. In addition, it might be added that deference to presidential initiative—as, for example, in war-making—may allow Congress to dodge accountability for hard decisions.
As to the judiciary, Shah notes that a willingness to indulge presidentialism may have become a prerequisite to judicial appointment, even as right-wing Justices’ willingness to weaken administrative agencies becomes a vehicle for empowering themselves. Unfortunately, the seeming cynicism Shah’s hypothesis implies might be well-placed.
Professor Lisa Heinzerling, one of presidentialism’s most trenchant critics, argues that it is important that litigants (and progressive lawyers more generally) continue to push for constitutional arguments that reject the formalist originalism now dominating the Court. She finds concerning my statement in DCE that “[l]itigants challenging the executive must argue on [the originalist] Justices’ terms in order to have any hope of prevailing for their clients.” I did not mean to assert that litigants should argue only in that mode, but that serving clients is likely to mean advancing arguments within the dominant judicial discourse, even as lawyers and legal academics argue for views of the Constitution that are not rooted in an exclusionary past. Heinzerling is nonetheless on strong ground in explaining how the Court’s supposed originalism privileges “only a particular and privileged strain of liberty” and “the interests of modern-day counterparts of the elite, white, male, propertied participants in the constitutional framing, at the same time disfavoring the interests of the modern-day counterparts of those excluded.” The point appears quite nakedly in the mechanical, almost self-parodying ways in which some lower courts have embraced the Supreme Court’s veneration of the exclusionary past—for example, a court holding that it violates the Second Amendment to withhold firearms from perpetrators of domestic violence because domestic violence would have been well known at the Founding, but domestic abusers were not prevented from owning guns.
Staszewski sees some prospect for democracy-building in government-organized initiatives to engage the public directly in public policy decision making—for example, through notice and comment rulemaking. The underlying hope, also expressed in DCE, is that as more Americans experience themselves to be meaningful participants in collective decision making other than through voting, there will develop a popular expectation of citizen entitlement to participate that will make reform efforts “sticky.” Thus, Staszewski asserts, citizen engagement initiatives voluntarily adopted within the executive branch by pro-democracy presidents might survive even if less receptive presidents might wish otherwise. As much as I would wish that to be true, I suspect that such experiences are more likely to take hold at the local, rather than national level. That was the intuition behind my recommendation for a National Institute of Democracy to sponsor local citizen engagement initiatives. Emerson finds that proposal “particularly interesting,” and I believe it would be consistent with Somin’s preference for local government to be the critical site for democratic contestation—what Staszewski would call “agonistic republicanism.”
One suggestion I did not pursue was the program urged by Professor Pildes in his opening essay. Pildes, along with Arthur Schlesinger, doubts that a runaway presidency can be prevented unless presidential candidates are chosen who are most likely to have internalized the spirit of checks and balances. In other words, character counts. Pildes argues, however, that the processes by which Democrats and Republicans now select presidential candidates—shifting the choice away from elected party officials to voters in political primaries—has left the ground open for extremists and demagogic figures to thrive. He thus urges the rebuilding of the role of party leaders in the selection of presidential candidates, through measures he thinks practicable and unlikely to revive the exclusionary institutions of the past. There is much sense to Pildes’s argument, and I wish I had said more in DCE about the potential democratic dysfunctionality of political primaries. Whether the major parties will see the sense in undertaking this kind of reform is an open question, as is the practicability, I suppose, of a number of proposals advanced in DCE that less sympathetic critics might dismiss as utopian.
I conclude by returning to where I began my reactions—with an expression of my deepest thanks to the many colleagues who have provided such provocative reactions to Democracy’s Chief Executive. As I hope my reactions have shown, they have given me much to ponder and, I hope, have deepened my thinking. Whatever the book’s ultimate impacts, if I have provided a basis for this much constructive debate, I must have done something right. Thank you for that hope.
Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at The Ohio State University Moritz College of Law and Distinguished Scholar in Residence, NYU Law.